Renu Kumari vs The Bihar Legislative Assembly and Others

Jyoti Saran, J.—The petitioner who is a sitting member of the Legislative Assembly has preferred this writ petition praying for the following reliefs:--

(i) For issuance of an appropriate writ in the nature of Certiorari for quashing the Letter dated 12.6.2014 issued under the signature of the Respondent No. 3 and contained in his Letter No. 837 dated 12.6.2014 whereby and whereunder the petitioner has been called upon to appear before the Hon''ble Speaker of Bihar Legislative Assembly on 17.6.2013 at 11.30 AM with a show cause as to why she be not disqualified to continue as a member of the Bihar Legislative Assembly under Paragraph 2(1)(a) of the tenth schedule of the Constitution of India on the ground that in the general parliamentary election 2014, she has been campaigning against the official candidate of Janata Dal (United) and in favour of official candidate of Bharatiya Janta Party and thereby she has voluntarily given up her membership of Janata Dal (United) political party.

(ii) For a declaration that since the allegations as contained in the impugned notice and/or the allegations made in the complaint does not constitute any ground to proceed against the petitioner under tenth schedule of the Constitution of India, the impugned notice issued by the Respondent No. 3 at the instance of Respondent No. 2 has no legs to stand in the eye of law.

(iii) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner is entitled under the facts and circumstances of the case.

Mr. S.B.K. Manglam, learned counsel has appeared on behalf of the writ petitioner while Mr. Devendra Kumar Sinha, Senior Advocate assisted by Mr. Abhinay Raj, Advocate has appeared for the respondent Nos. 1 to 3 and Mr. Lalit Kishore, Senior Advocate duly assisted by Mr. Piyush Lall has appeared for the respondent No. 4.

As is manifest from the relief prayed, the petitioner has questioned the show cause notice bearing letter No. 837 dated 12.6.2014 issued in purported exercise of power vested under the Bihar Members Legislative Assembly (Disqualification on Grounds of Defection) Rules, 1986 (hereinafter referred to as "the Rules") framed under paragraph 8 of the Tenth Schedule of the Constitution of India, whereby the writ petitioner has been required to respond to the allegations set out against her in the application filed by the respondent No. 4 seeking her disqualification under paragraph 2(1)(a) of the Tenth Schedule.

Mr. Lalit Kishore and Mr. Devendra Kumar Sinha appearing for the respondents raised preliminary objections as to the maintainability of the writ application in the backdrop of the stage of proceedings as well as the bar provided under paragraphs 6(2) and 7 of the Tenth Schedule read with Article 212 of the Constitution of India.

Mr. Kishore leading the arguments questioned the maintainability of the writ application primarily on two grounds. He submitted that since the proceeding is only at the stage of issuance of show cause notice, the writ petition is premature and this Court would not exercise its extraordinary jurisdiction to interfere with the same. It was submitted that the law as to exercise of powers vested under Article 226 of the Constitution of India in matters which were yet to attain finality, was well settled and unless it was demonstrated that the authority issuing the show cause notice had no jurisdiction to do so or unless the allegation which formed the foundation for the show cause notice, even if accepted on its face value, would not constitute any violation, the proceedings did not warrant interference. It was the contention of learned counsel that whereas such is the legal position as applied to cases in general, the position with regard to matters concerning the Tenth Schedule is even on a higher pedestal in view of the bar provided thereunder.

Learned counsel in support of his submissions has relied upon the following judgments:--

(1) Pandit M.S.M. Sharma Vs. Dr. Shree Krishna Sinha and Others, ;

(2) Kihoto Hollohan Vs. Zachillhu and Others, ;

(3). The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, ;

(4) Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, .

On the strength of the judicial pronouncements referred to above it was contended that whereas even in normal cases, the Courts have refrained from interfering with the proceedings which were at notice stage, in so far as the present case is concerned, the immunity to such proceeding from judicial interference, is manifest from the Constitutional mandate provided under paragraphs 6(2) and 7 of the Tenth Schedule read with Article 212 of the Constitution. It was thus submitted that the writ petition was premature and thus not maintainable.

The arguments of Mr. Kishore was seconded by Mr. Sinha appearing for the respondent Nos. 1 to 3 and who referred to a judgment of the Karnataka High Court reported in Sri. A.K. Subbaiah Vs. The Chairman, Karnataka Legislative Council and Sri. Arun Machaiah, Member, Karnataka Legislative Council, to submit that this issue stands concluded in the said judgment.

Mr. Manglam appearing for the writ petitioner responded to the objections raised by the counsel for the respondents by referring to "the Rules" to submit that there is no absolute bar to question a proceeding at its notice stage and that each matter has to be considered on its own facts. Mr. Manglam while admitting that normally the Courts have not been interfering in any proceedings which was yet at notice stage, submitted that where the very initiation of proceeding is founded on an illegality, the aggrieved party may not be forced to subject itself to the illegalities. It was submitted that since the complaint which formed the basis of the proceedings itself was not in tune with "the Rules", it could not be acted upon. Referring to "the Rules" which was placed on record by way of supplementary affidavit it was submitted that the same having been framed by the Speaker in exercise of powers vested under paragraph 8 of the Tenth Schedule, he was bound by the obligations cast upon him thereunder. With reference to Rule 6 it was mentioned that the modalities for filing a complaint has been set out thereunder and sub-rule (6) thereof requires that the application should be duly verified as per the provisions of the Code of Civil Procedure (hereinafter referred to as "the Code").

With reference to the provisions underlying Order 6, Rule 15 of "the Code" it was contended that the application filed in this regard, is not only to be duly verified in the manner prescribed but is also to be supported with an affidavit. Inviting the attention of the Court to the application filed by the respondent No. 4 placed at Annexure-1 it was submitted that neither the verification is in the prescribed format nor is the application accompanied with an affidavit. Mr. Manglam with reference to Rule 7 of "the Rules" contended that an obligation is cast upon the Speaker to satisfy itself as to whether the application fulfilled the statutory requirements and failing which it was his duty to reject the same and inform the applicant accordingly. It was submitted that the Hon''ble Speaker had failed to discharge such obligation as cast upon him and thus had abdicated his statutory duty thus rendering the proceedings void ab-initio. On the strength of a judgment reported in Sri Baru Ram Vs. Prasanni and Others, it was submitted that where a statute requires an act to be done in a particular manner it had to be done in that manner alone. Referring to Rule 7(3) of "the Rules" it was submitted that it is only in circumstance where an application fulfills the statutory requirements that it can be acted upon and not as a matter of course. Learned counsel concluded his arguments by submitting that since there has been an infraction of the lawful procedure, the proceedings cannot continue and the show cause notice impugned in the writ petition is fit to be set aside.

Responding to the issues raised by Mr. Manglam, Mr. Kishore submitted that even the procedural infraction complained of by the petitioner was not sufficient for interference with the proceedings inasmuch as it was a mere irregularity and which can well be addressed by the petitioner during the course of the proceedings before the Hon''ble Speaker. Referring to the judgment of the Supreme Court reported in Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, paragraphs 16 to 18 it was submitted that the Supreme Court has held that any procedural irregularity in a proceeding arising under the Tenth Schedule of the Constitution was not open to judicial scrutiny. It was submitted that the position so settled was followed in a subsequent judgment reported in Dr. Mahachandra Prasad Singh Vs. Hon. Chairman, Bihar Legislative Council and Others, , paragraphs 3, 12, 14 and 18.

I have heard learned counsel for the parties and I have perused the materials on record.

An interference with any proceedings which is at a nascent stage of show-cause notice, is an exception and the simple reason is that at such stage there are no foundational facts available for adjudication except the substance of allegation set out thereunder. Thus unless it can be demonstrated that a show cause notice was issued by an authority not vested with such jurisdiction or that the allegations forming the basis for the show cause notice even if accepted on face value did not constitute any statutory violation or the show cause notice itself was suffering from patent illegality, it is not to be lightly interfered with.

Such is the legal position as applied to cases falling in the general category. The legal position in so far as judicial review of matters arising under the Tenth Schedule is concerned, is further circumscribed, which is manifest from paragraph 6(2) and paragraph 7 thereof read with Articles 122 and 212 of the Constitution of India. Although Mr. Manglam tried to draw advantage on the strength of procedural violation by the applicant-respondent No. 4 in filing his application but even the said issue stands answered by the judgments of the Supreme Court referred to above.

In the case of Kihotto Hollohan (supra) the Supreme Court while taking notice of the Constitutional mandate under the Tenth Schedule, has held in paragraph 111 that although paragraph 6(1) of the Tenth Schedule imparts finality to the decision of the Speaker/Chairman but the statutory finality embodied thereunder would not abrogate the power of judicial review vested under Articles 136, 226 and 227 of the Constitution of India in so far as infirmities based on violations of the Constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity are concerned. Taking note of the provisions underlying paragraph 6(2) of the Tenth Schedule attracting immunity akin to Articles 122 and 212 of the Constitution of India, it was with reference to an earlier judgment held that the provision was to protect the validity of a proceeding from mere irregularity of procedure. It was clarified that a judicial review even if available for scrutiny of the final order passed by the Speaker/Chairman, would not cover any stage prior thereto.

The legal position so settled by the Supreme Court was reiterated in the subsequent judgment of Ravi S. Naik (supra) when it was held in paragraph 18 as follows:--

"...... ...... ...... ......

The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case. Moreover, the field of judicial review in respect of the order passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case is confined to breaches of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates......"

In the case of Ravi S. Naik (supra) the Supreme Court was considering the provisions of the Goa Legislative Assembly (Disqualification on Grounds of Defection) Rules, 1986 and Rules 6 and 7 thereof which fell for consideration, are pari materia to "the Rules" in question in the present proceedings.

It is thus manifest from the judgments (supra) that even if a Member of a House has a remedy of judicial review against a final order passed by the Speaker/Chairman by virtue of power vested under the Tenth Schedule affecting his rights, he cannot take recourse to the same prior to the stage attaching finality to such proceedings.

The legal position as regarding the scope of judicial scrutiny of the matters arising under the Tenth Schedule having been crystallized under the judicial pronouncements referred to above, there remains no room for confusion that the writ petition is premature and no right of the petitioner has been infringed by the impugned show cause notice.

For the reasons aforementioned, I am not persuaded to interfere with the show cause notice and this writ application is accordingly dismissed. Before parting with the order, I would like to clarify that this Court has not delved into the merits of the allegation which forms basis for the issuance of the show cause notice.